The Amendment Process: Steps To Change The Constitution

Amending a constitution is a challenging and time-consuming process. The US Constitution, for instance, has only been amended 27 times since 1787. To amend the US Constitution, two-thirds of both houses of Congress must pass a proposed amendment, which is then ratified by three-fourths of the states. Alternatively, two-thirds of state legislatures can request a constitutional convention to propose amendments, though this has never occurred. Other countries, like Bulgaria, France, and South Africa, have their own unique processes for constitutional amendments, which may include parliamentary votes, referendums, or special procedures.

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Two-thirds majority in Congress

The process of amending the Constitution of the United States is intentionally difficult and time-consuming. The Constitution has been amended only 27 times since it was drafted in 1787, and all 33 amendment proposals that have been sent to the states for ratification have come via Congress.

The first step in the process is for two-thirds of both houses of Congress to pass a proposed amendment. This is a high bar to clear, requiring broad bipartisan support. The amendment is then proposed in the form of a joint resolution, which does not go to the White House for signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication.

The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution and copies of the joint resolution in slip law format.

Once the OFR has received the required number of authenticated ratification documents from three-fourths of the states (38 out of 50), it drafts a formal proclamation for the Archivist of the United States to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice that the amendment process has been completed.

While the process of securing a two-thirds majority in Congress to propose a constitutional amendment is challenging, it is just the first step in the amendment process. The ratification process, which requires the approval of three-fourths of the states, is even more demanding.

Ratification by three-fourths of states

The process of amending the Constitution of the United States is a challenging and time-consuming endeavour, as the framers intended when they drafted the document in 1787. The Constitution has been amended only 27 times since then, indicating that amendments are reserved for ideas that have a significant impact on all Americans or protect the rights of citizens.

The authority to amend the Constitution is derived from Article V of the Constitution, which outlines two methods for states to ratify amendments. The first method requires ratification by the legislatures of three-fourths of the states, which is 38 out of 50 states. This means that after Congress proposes an amendment, it is sent to the states for ratification. Once three-fourths of the states have ratified the amendment, it becomes part of the Constitution.

The process of ratification is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action, which is then conveyed to the Director of the Federal Register. The OFR examines the ratification documents for legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them.

Once the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete. This certification has become a ceremonial function attended by various dignitaries, including sometimes the President.

It is important to note that the process of amending the Constitution is not often initiated by a convention of states, as none of the 27 amendments to the Constitution have been proposed in this manner. However, state legislatures have used their power to call for a convention to pressure Congress into proposing a desired amendment.

A national constitutional convention

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The United States Constitution provides two methods for proposing amendments, and one of them includes convening a national constitutional convention. According to Article V of the Constitution, the first step is for two-thirds of state legislatures to call for a convention. This means that out of the 50 states, at least 34 must pass resolutions requesting a convention. This process allows states to take the initiative and propose amendments directly, bypassing the need for Congress to propose amendments.

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Once the required number of states has called for a convention, the mechanics of the process come into play. The convention itself is a gathering of delegates chosen by the states specifically for this purpose. Each state typically selects a certain number of representatives to attend and participate in the deliberations. These delegates can be state lawmakers, legal scholars, or even private citizens with relevant expertise and interest.

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During the convention, delegates discuss, debate, and draft proposed amendments. This process can be highly collaborative, with extensive discussions and negotiations taking place. The specific rules and procedures governing the convention may vary, as they are often determined by the states involved or set out in federal laws enacted by Congress. The goal is to reach a consensus and agree on the final text of one or more amendments that will then be put forward for ratification.

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It's important to note that a national constitutional convention does not have the power to directly amend the Constitution. Its primary role is to propose amendments. Once the convention has concluded its work and proposed amendments, these amendments then undergo the ratification process outlined in Article V. There are two ways in which proposed amendments can be ratified: by state legislatures or by ratifying conventions, with three-quarters of the states needed for approval in either case.

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The beauty of a national constitutional convention lies in its potential to spark meaningful discussions and bring about necessary changes to our nation's founding document. It empowers the states and the people to initiate the amendment process, ensuring that the Constitution remains responsive to the needs and aspirations of a changing society. While the bar for calling a convention is intentionally set high to prevent frivolous attempts, it serves as an important check and balance in our system of government.

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The Archivist's role

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process of constitutional amendments. The Archivist's role is primarily procedural, ensuring the proper execution of the amendment process as outlined in Article V of the Constitution.

While the Archivist does not have a substantive role in determining the validity of state ratification actions, they play a crucial part in certifying the facial legal sufficiency of ratification documents. This certification is a final and conclusive step in the amendment process. The Archivist receives an original or certified copy of state action from the governors or state legislatures when a state ratifies a proposed amendment.

The Archivist has delegated many of the ministerial duties associated with the ratification process to the Director of the Federal Register (OFR). The OFR examines the ratification documents received by the Archivist for facial legal sufficiency and authenticating signatures. Once the OFR verifies the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.

The certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process has been completed. The signing of this certification has become a ceremonial function, often attended by various dignitaries, including the President. While the Archivist's role is largely procedural, it is a critical aspect of the constitutional amendment process, ensuring the proper execution and final certification of amendments to the Constitution.

The President's role

The President does not have a constitutional role in the amendment process. A proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by the legislatures of three-fourths of the states (38 out of 50 states). Once an amendment is ratified by the required number of states, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.

The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution and copies of the joint resolution in slip law format.

When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and serves as official notice to Congress and the nation that the amendment process has been completed. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.

While the President does not have a formal role in the constitutional amendment process, they can influence and support proposed amendments. For example, President Clinton endorsed the idea of a crime victims' rights amendment, and President Lincoln signed what became the Thirteenth Amendment, after which Congress passed a resolution affirming that the presidential signature was unnecessary.

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